Draft Resolution 5274 – Sanctions as a form of domestic control?

November 2, 2016

Almost as a cast iron rule this blog has steered widely from profanity and also popular Internet slang/abbreviations. Today’s entry however will transgress that rule.

It has been strongly rumoured, and indeed appears on the Facebook page of Dmitry Tymchuk (for whatever credence that may provide) that the Verkhovna Rada Committee on National Security and Defence has registered Draft Resolution 5274 – a Resolution that seeks to place sanctions upon Ukrainians, almost all of whom are in Ukraine, for “….the creation of real and/or potential threats to Ukraine’s national interests, national security, sovereignty and the territorial integrity of Ukraine, to promote terrorist activities …”

How often are citizens within their country sanctioned by their own government for acts they are conducting within that country that are perceived to seriously harm the territorial integrity and sovereignty of that country? Sanctions?

Sanctions are almost exclusively a tool of foreign policy and almost never a tool of domestic control – for domestic control is conducted via jurisdiction and rule of law.

There are criminal laws within the Ukrainian statute books that are specifically designed to deal with “….the creation of real and/or potential threats to Ukraine’s national interests, national security, sovereignty and the territorial integrity of Ukraine, to promote terrorist activities …”.

Sanctions?

Surely if these individuals have “created real and/or potential threats to Ukraine’s national interests, national security, sovereignty and the territorial integrity of Ukraine, or promote terrorist activities” then any individual case with sufficient evidence for implementing sanctions also posses sufficient evidence to investigate them under some particularly serious legislation.

If there is a gaping hole within the criminal legislation and it is necessary to plug it then the coalition is still capable of garnering 226 votes to pass legislation that will fill the gap.

Sanctions are not an extrajudicial instrument of proscribed punishment, but a tool which is employed to change the direction, or at least cause pause for thought, for those subjected to them and are almost always are applied to those that are beyond the jurisdiction of the applying entity. Thus is this tacit acknowledgement by the Ukrainian State that there are still Ukrainians who are public figures within Ukraine and who are perceived to be acting against the interests of Ukrainian sovereignty and territorial integrity that nevertheless fall beyond its ability to apply the rule of law, and by extension its domestic jurisdiction?

Arguably applying sanctions to Mr Firtash, currently oligarch-in-exile in Vienna, could be deemed reasonable as he is beyond the jurisdiction of Ukraine. However, if Mr Firtash returns, Ukraine would arrest him and then hand him over to the US where he is, and will remain, wanted – for so far as this blog is aware, there are currently no court cases pending for Mr Firtash within Ukraine for offences committed on its territory (particularly so with regard to the substance for which he may yet be sanctioned), hence extradited to the US he would swiftly be.

Of the others upon the list within the draft Resolution almost all currently remain within Ukraine. They are thus to be sanctioned in lieu of criminal investigation and due process (despite the seriousness of the grounds for sanctions within the draft Resolution)?

The proposed sanctions are therefore to be employed as punishment avoiding criminal investigation and due process justified due to the absence of legal integrity – despite therefore questionable legitimacy? If so, is that because of a lack of will to launch such investigations, or perhaps because it is felt that there would be insufficient evidence for conviction, or because the judicial system can still be bought – therefore personal sanctions by Ukraine upon Ukrainians residing in Ukraine are a justified Plan B? (If so ECfHR get ready for further Ukrainian cases.)

Also listed within draft Resolution 5274 are about a dozen companies/corporations/business entities.

Some such as Rosneft are clearly headquartered without Ukraine as are the owners/top tier management. Others (Group DF, News Media Holdings etc), most of the entities listed are owned by those individuals also listed, are headquartered within Ukraine or otherwise have a reasonable physical presence.

In the cases where there is a corporate physical presence within Ukraine, sanctions would again appear to be a soft and/or part solution considering the gravity of the accusations. Sanctioning those entities in their entirety may be reasonable when considering the entity parts active outside Ukraine, but there are surely harder legislative options for the parts that are physically present in Ukraine and do indeed “create real and/or potential threats to Ukraine’s national interests, national security, sovereignty and the territorial integrity of Ukraine, or promote terrorist activities”.

Will other nations sanction those listed for sanctions in Ukraine and by Ukraine when they would probably expect these people to face criminal investigation for such serious allegations instead? Does this proposed sanctions Resolution not make the Ukrainian State look domestically rather weak – or at least appear far weaker than is actually necessary?